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Doggie Dining - Making Sense of the Confusion

by Tara and Len  Kain, DogFriendly.com, July 19, 2006

CONTINUED FROM JULY NEWSLETTER

CONTINUED ... So what do the state laws actually say? We have looked at three states with different legal structures for their restaurant health codes. These states are California, Washington, and Florida. Other state codes may be similar to one of these models but chances are they will be different in some ways.

For people who wish to dine at an outdoor restaurant with their dog, California is perhaps the  most dog-friendly state in the country with regards to dogs at outdoor dining establishments. The state has been pet-friendly in this manner for at least the past 20 years.  According to Susan Strong, a representative of the California Department of Health Services (CDHS), Food and Drug Branch, "(pet) dogs are allowed throughout California at any outdoor dining areas unless they have to walk through the inside of a restaurant to get to the outdoor seats." It does not matter if food is served outside or taken out by the customer, or if the seats are located on a patio, sidewalk, or in a fenced area as long as there is access through an outside gate or opening. The California law is set by statute which was last updated in 1986. In addition, the California statute forbids counties or cities from making these codes stricter. Of course, it is still the prerogative of a restaurant owner to choose whether or not to allow dogs in their outdoor seating area, but the choice lies with the owner, not the city or county. Notwithstanding the state law, even in California, restaurants will sometimes cite local health codes in not allowing dogs at their outdoor seating areas. In some cases, the restaurant owner may be trying to shift the "blame" so that customers with dogs in tow will not be upset with the restaurant. In other cases, the local health inspector may be misapplying the interpretation of the California statute. An example of this, that we have seen over the years, is the Santa Barbara branch office of the Santa Barbara County Public Health Department which has continuously told restaurants and the public that dogs are not allowed at any outdoor seating areas. Meanwhile, the Santa Maria branch office of the Santa Barbara County Public Health Department says that dogs are allowed at outdoor tables.

Compared to California, the State of Washington has an entirely different set of statutes with regards to dogs at outdoor restaurants. According to Janet Anderberg of the Washington Department of Health, "Animals are not allowed on the premises of a food establishment". The premises is defined as the area that is controlled by the restaurant owner, including an outside dining area, regardless of whether food is served there or not. This code is the wording that is contained in the FDA Food Code that many states have incorporated parts of. When incorporating the FDA Food Code, states often modify it to be consistent with their pre-existing state statutes. However, even though Washington's state health code does not allow animals on the premises of a food establishment, this does not automatically preclude dogs in outdoor seating areas throughout the state. In Washington, the state allows the county health departments to issue variances if they are willing to do so. Also, tables that are not controlled by the restaurant directly, such as those in a shopping center that are cleaned by mall janitors or an area on a sidewalk beyond a restaurant's railing may not be defined as the premises by local health inspectors. In the absence of any variances, generally the only way for people with dogs to dine outdoors with their dog in the State of Washington is to get the food to go or carry out, and take it with them to a public bench on a sidewalk, a picnic table in a park, or somewhere off of the premises of the restaurant.

Florida has made news this year since it passed a statute in May 2006, allowing cities and counties to permit dogs in outdoor seating areas despite the state ban on animals on the premises. Florida's State Code has similar wording to Washington's State Code in that "Animals are not allowed on the Premises of a Food Establishment". In most states, no state law would be needed for local governments to allow pets because local health departments could issue a variance to the code, as was done in  Alexandria and Austin. However, Florida, unlike most states, employs state health inspectors instead of local inspectors. There was no such thing as a variance in the health code in Florida that local governments could use to allow pets at outdoor dining areas. By passing its statute in May of 2006, Florida gave its cities and counties the equivalent of variances specifically in regard  to dogs at outdoor restaurants. This new law was originally proposed and pushed by the city of Orlando when the state health inspector that oversees their district began penalizing restaurants for allowing dogs at outdoor seats. While Orlando restaurants were being fined, most of the rest of the state's dog-friendly outdoor restaurants were not fined. Although this law doesn't, by itself, allow dogs at outdoor restaurants throughout Florida, the action sets a positive tone towards permitting dogs.

As for other cities, Chicago Alderman Walter Burnett Jr. is currently in the process of introducing a city ordinance to make it legal for dogs to dine at outdoor restaurants in the nation's third largest city. In addition, the State of Illinois is looking into changing their regulations to allow dogs at outdoor tables.  According to Alderman Burnett, the proposed codes may be modeled after the California health code.

If a state doesn't allow animals on the premises of a restaurant, why do we see restaurants with dogs at the outdoor seats all the time and is it really breaking the law? In most cities throughout the country, there are dog-friendly outdoor restaurants. Some restaurants allow dogs at their outdoor seating areas and others feature doggie menus and water bowls for canine customers. There are a number of potential reasons for this. First of all, in states like California and some Florida cities, and in cities similar to Alexandria and Austin, dogs dining with their people at outdoor restaurants is legal. Also, in many states, the Health Code says that "Animals are not allowed on the premises." It does not say that "Dogs or Pets" are not allowed. Animal is clearly defined in many state codes to include "vermin, birds, insects and rodents". Unless a restaurant has enclosed their outdoor seating area with netting or screens, they would be in violation of this code, even if no dog was ever permitted on the premises. If the intention of such a code was to not allow animals including pets, birds, rodents and insects, then restaurants would need to shut down all non-screened outdoor seating. But this does not seem to be the intention of the code. So some cities and counties minimize the enforcement of this section of their code. In addition, different cities have different definitions of the premises. Many locales will let you tie a dog to the outside of the railing surrounding an outdoor dining area and some have decided that seats on the public sidewalks are not defined as the "premises" since the restaurant owner does not control the traffic through this area. Also, some local health inspectors allow dogs only outside of the last row of tables and define the end of the premises at the last table. Another reason  for finding dogs at outdoor dining areas could be because while it may technically not be allowed, most city or county health departments could issue variances, thus making it allowed. Some local health departments may have chosen to "issue" these variances by simply allowing the behavior unless they get too many complaints from other diners who do not want dogs at outdoor restaurants. 

In general, when dining at an outdoor restaurant with your dog, you can and should always ask the restaurant manager or employee if dogs are allowed. The restaurant staff is typically required to know their local health codes. Even if it is legal, the restaurant's policy could be that dogs are not permitted. In our 15 years in traveling with dogs and dining at an outdoor restaurants in over 30 states, we have successfully dined with our dogs throughout the country. Out of all of the restaurants where we ordered food inside (with the dog remaining outside) and then carried it out ourselves to the outdoor tables, we were never told that we could not have our dog outside. At restaurants where food was served outside, as long as we asked ahead of time, we never had a problem dining with our pooch. There were some restaurants that did not allow dogs outside. Sometimes employees cited local or state codes, and some even incorrectly cited a Federal law. And some told us that it is their individual restaurant policy to not allow dogs at their outdoor restaurant. So when wondering where you can bring your dogs, the best thing is to always check ahead with a restaurant and ask if dogs are allowed outside.

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